of the judgment of the Court of Appeals in an unpublished
opinion filed March 13, 2015.
BY THE COURT
definition of an illegal sentence does not include a claim
that the sentence violates a constitutional provision, and a
defendant's motion to correct an illegal sentence based
on constitutional challenges to his or her sentence will fail
as a matter of law.
Appeal from Reno District Court; Timothy J. Chambers, judge.
Judgment of the Court of Appeals affirming and remanding to
the district court is affirmed. Judgment of the district is
Clayton J. Perkins, of Kansas Appellate Defender Office, and
Joanna Labastida, of the same office, were on the briefs for
E. Schroeder, district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
March 2007, David Kilpatrick pled no contest to one count
each of possession of ephedrine or pseudoephedrine with
intent to manufacture a controlled substance, possession of
lithium metal with intent to manufacture a controlled
substance, and possession of methamphetamine. The district
court imposed an underlying 26-month prison sentence and
placed Kilpatrick on probation. Twenty-eight days after
sentencing the district court revoked Kilpatrick's
probation and ordered him to serve his prison sentence.
time Kilpatrick committed his underlying crimes, drug
offenders were not required to register pursuant to the
Kansas Offender Registration Act (KORA), K.S.A. 22-4901
et seq. See K.S.A. 2005 Supp. 22-4902. On July 1,
2007-while Kilpatrick was imprisoned-the legislature amended
KORA by adding certain drug offenders such as Kilpatrick to
the list of those required to register. See L. 2007, ch. 183,
§. 1; K.S.A. 22-4902(a)(11)(B) (defining a drug offender
as "any person who has been convicted of: . . .
possession of ephedrine, pseudoephedrine, . . . [or] lithium
metal . . . with intent to use the product to manufacture a
Kilpatrick completed his sentence, he was released from
prison on June 6, 2008. A correctional facility employee
informed Kilpatrick of his duty to register as a drug
offender. The day after his release, Kilpatrick registered
with the appropriate authorities. However, in October 2009,
Kilpatrick pled no contest to one count of failing to
register. At sentencing, the court granted his request for a
dispositional departure and placed Kilpatrick on 36
months' probation. On three separate occasions in 2011
and 2012, the district court revoked, reinstated, and
extended Kilpatrick's probation.
the State moved to revoke Kilpatrick's probation a fourth
time, Kilpatrick filed a motion to correct his underlying
2009 sentence. He argued that because he had not been
required to register at the time of his drug conviction, his
subsequent 2009 sentence was illegal because the retroactive
imposition of registration requirements ran afoul of the Ex
Post Facto Clause of the United States Constitution. He
further argued that the district court had no jurisdiction to
convict and sentence him for violating a law that could not
be constitutionally applied to him. The State responded by
arguing that (1) KORA's provisions are not punishment, so
they can be applied retroactively; and (2) Kilpatrick waived
all jurisdictional attacks on his conviction because he did
not raise them during the pendency of his case. The district
court denied the motion by "agree[ing] with the
State's cited cases." The court denied
Kilpatrick's motion to reconsider, revoked his probation,
and remanded him to prison.
Court of Appeals affirmed in part and dismissed in part. In
doing so, the panel questioned sua sponte its own
jurisdiction, ultimately holding that it did not have
jurisdiction to consider Kilpatrick's ex post facto claim
because "'the definition of an illegal sentence does
not include a claim that the sentence violates a
constitutional provision.'" State v.
Kilpatrick, No. 111, 054, 2015 WL 1310723, at *7 (Kan.
App. 2015) (unpublished opinion).
recent decisions in State v. Wood, 306 Kan. 283, 393
P.3d 631 (2017), and State v. Reese, 306 Kan. 279,
393 P.3d 599 (2017), resolve Kilpatrick's appeal. There,
we first held that courts have jurisdiction to entertain
motions to correct illegal sentences at any time. We then
held that the definition of an illegal sentence does not
include a sentence that allegedly violates a constitutional
provision. Wood, 306 Kan. at 284-85; Reese,
306 Kan. at 281.
according to our holdings in Wood and
Reese, the lower courts had jurisdiction to hear and
consider Kilpatrick's motion as a motion to correct an
illegal sentence made pursuant to K.S.A. 22-3504. But that
motion advanced no meritorious argument demonstrating
Kilpatrick's sentence was illegal, so his claim fails on
the merits. Thus, we affirm the outcome below, albeit for
different reasons. ...